‘Ladies Keep Your Legs and Your Mouths Shut’

by Kathryn Jean Lopez

In case you needed confirmation that absolutely nothing is, in fact, sacred, someone has messed with Schoolhouse Rock to celebrate the name of Wendy Davis, to ensure we learn no lessons from the Kermit Gosnell trial, and don’t act on the examination of conscience it demands of us. 

In the new version, with about 40,000 views, we are told that the Texas Infant Pain Capable Protection Act will take us all “one step closer to theocracy,” marking a “war on women” and a  ”a battle for vaginas.” “Owning your uteruses gives them a thrill.” The bill is a “a pain in the uterus.” Never mind the pain of the child. Never mind the pain of pretending there aren’t lives abortion hurts, beyond the dead child. Because apparently we’re comfortable not hearing the cries that should rock our consciences

The bill that has become a shameful spectacle is about the fact these 20-week-plus olds are each “one of us,” as Notre Dame’s Carter Snead put it in testimony this week

The capacity of unborn children to experience pain by 20 weeks’ gestation—confirmed by leading experts on all sides of the abortion dispute—is a decidedly new, and a deeply salient moral fact that weighs heavily in favor of the unborn child in the balance at the heart of the Court’s jurisprudence. It provides a novel, constitutionally significant interest that the state may invoke to justify its efforts to regulate the practice of abortion.

This new information about the nature of the unborn child forces us to confront the fact that she is “one of us” not merely insofar as she is a living (albeit immature and dependent) member of the human species, but also in that she experiences pain much as we do (perhaps even more acutely). This insight about who the unborn child is—never before considered by the Court—offers a new and overwhelming justification to limit abortions, certainly to the very modest extent that SB1 would.

And given Snead thinks it would sit well with Anthony Kennedy, don’t believe the pink-sneakered hype:

the Constitution does not prevent Texas from taking this very modest step to protect unborn children. There are no Supreme Court precedents that grapple with the unique features of SB1, and the powerful, novel state interest in which the bill is grounded. Relevant precedent suggests that a majority of the Court would treat the new state interest in protecting the lives of unborn children capable of experiencing pain as sufficient to justify the new law.

Finally, given the import of his role as a swing Justice, it bears concluding with a brief speculative comment on how Anthony Kennedy might evaluate SB1. Despite his apparent unwillingness to overturn what he takes to be the “central holding of Roe v. Wade,” Justice Kennedy has affirmed every state and federal limit on abortion that he has ever considered, save one (a Pennsylvania law requiring spousal notification). Given his empathy for the vulnerable and his demonstrated willingness to give states latitude to act in defense of the unborn, it is highly likely that he would be satisfied that the state’s interest here justifies basic legal protections for unborn children who are able to feel pain.

Surely we can move to protect these innocents, at least.